The expropriation bill is not the land reform law SA needs
Our five-year ritual is upon us. On May 29, we shall elect a new government — or perhaps extend the mandate of the current one. And so, predictably, “land reform” is in vogue once again.
The expropriation bill — which should have been passed 30 years ago — has been resurrected — not to address the colonial and apartheid crisis of land injustice, it seems, but as a political football. Nevertheless, the bill is necessary. Black people need land — to live on it, eat from it, and make a livelihood from it.
Black people also need land to affirm their common South African citizenship and give effect to the promise of the Freedom Charter that South Africa belongs to all who live in it. If some have so much land and others so little, then perhaps the country doesn’t really belong to all, but only to some. Land is the thing that will finally help black people to experience freedom — to make tangible, visible and touchable the revolution against conquest and apartheid.
We decided the revolution would also be constitutional, underpinned by legal rules and principles. In this regard, a central piece of legislation is the expropriation bill. But, questions of state capacity and counter-hegemonic forces aside, will this bill actually give land to black people who need it?
An analysis of the structure of the bill shows that, as an instrument of land reform, the impact of the bill will be negligible. Why? I should clarify that by “land reform” I mean the actual transfer of ownership to black people who need the land but cannot afford to buy it, for historical reasons. I also mean the ability of black people to access land, exploit it and productively use it.
First, on the question of transfer of title, the bill does not envisage any acquisition of title by private individuals who need the land. The bill defines “expropriation” as the “compulsory acquisition of property by an expropriating authority or an organ of state upon request to an expropriating authority”. So, right at the outset, the bill adopts the standard definition of expropriation as an instrument to empower the state to acquire property without the consent of the owner.
Second, the bill contains express limits on the power to expropriate. Land owned by state entities or state corporations may not be expropriated without the consent of the executive authority responsible for that corporation or entity. The state is required first to reach an agreement with the owner of private property on “reasonable terms”, and any expropriation without this step is unlawful.
Furthermore, expropriation can be effected only for a “public purpose” or in the “public interest”. By public purpose it is meant that taking a property must be connected with the administration of a law. When it comes to public interest, the bill merely regurgitates the constitution, stating that it means “the nation’s commitment to land reform, and to reforms to bring about equitable access to all South Africa’s natural resources in order to redress the results of past racial discriminatory laws or practices”. This provision could have provided the basis for deepening land reform, but it is also where the problem lies.
The third problem with the bill is section 3, which purports to empower the minister of public works & infrastructure to “expropriate property for a public purpose or in the public interest”.
Any other organ of state that wishes to expropriate property must ask the minister of public works to do this on its behalf. However, subsection 3 contains a perplexing clause stipulating that the minister’s power to expropriate property in terms of the bill “applies to property which is connected to the provision and management of the accommodation, land and infrastructure needs of an organ of state, in terms of the minister’s mandate”.
What does this mean? The section identifies the class of property that may be expropriated, meaning any property falling outside this category cannot be expropriated. That is clear because sections 1 and 2 of the bill are the only ones that permit expropriation of private property.
The type of property that may be expropriated must be connected to the provision and management of the accommodation, land and infrastructure needs of an organ of state. Basically, the minister can expropriate only if the state needs accommodation or land, or wishes to develop infrastructure. Nothing else.
The promise of expropriation for “land reform” is rendered moot. But the section goes further. The accommodation, land and infrastructure needs of the state must be connected to the “minister’s mandate”. The mandate of the minister of public works & infrastructure is not land reform — it is to manage the land, accommodation and infrastructure needs of the state. That mandate will not change. As a consequence, the bill can be used only to help the department of public works to acquire buildings, roads and land for the state — not for the landless.
Ultimately, the bill promises much but delivers little. There is a betrayal of history in its problematic and constrained framing. Even the 1975 Expropriation Act defined the minister responsible for expropriation as “the minister of agriculture”. Yet in 2024 the function of expropriation is not located in the department with a mandate for land reform. So it turns out the bill is not an engine for land reform after all: it will not result in land being given to poor people who need it but cannot afford it. Nor will it guarantee access to and productive use of the land. Of course, the 1975 legislation had to be repealed, but a new bill that speaks to land is what is needed — perhaps after the elections with a new government, or with the current government having been given a fresh mandate.
For progressive constitutionalists there is some hope. Apart from its stale critique of section 25 of the constitution, the EFF’s proposals on land could bring about the changes we need. The main idea is captured in point 8: “The EFF government takes cognisance of the difficulties faced by the land restitution programme and will do away with land restitution as a mechanism for land reform, and have the land reform programme anchored mainly by land redistribution.”
One could quibble about whether there is a strong enough case to jettison land restitution in its entirety. However, what is impossible to argue against is the centrality of land redistribution for the future. At its December 2022 conference, the ANC also passed a resolution calling for a land redistribution bill falling under the auspices of the department of rural development & agriculture that would specifically enable poor people to own, access and productively use land.
But, as with so many other worthy issues, the government is the place where good resolutions go to die. Both the EFF and ANC proposals are validated by a section of the constitution that has been ignored by the government. Section 25(5) provides: “The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.”
We need this section implemented now. Regrettably, the expropriation bill is not the law we need for land reform.
The bill can only be used to help the department of public works to acquire buildings, roads and land for the state — not for the landless